Unilateral legal transactions in the law of succession: form of expression of will and legal consequences
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Abstract
The article examines the question of implementation of the right to inherit or, in other words, the excercise of the successoral option. With the opening of succession, every successor has the right to accept or to renounce the succession. This option can be exercised by way of concluding unilateral legal transactions, such as acceptance of succession and renunciation of succession.
These two legal transactions are analysed in regard to the form of expression of will and the legal consequences they produce. As long as acceptance of succession may be express or tacit (deduced from some factual circumstances clearly attesting the will of an heir to inherit), renunciation of succession has to be express or result from the law which attaches legal consequences to the non-acceptance of succession, i.e. to silence on the part of an heir.
The article also deals with the question relating to the time limits for excercing the successoral option. Under Lithuanian law, a successor has three months from the opening of the succession to deliberate and exercise his option. Author comes to a conclusion that this period could not be regarded as an extinctive time limit which extinguishes the subjective right of an heir to inherit.
The question of revokation of unilateral legal transactions is analysed in the case of a renunciation of succession. While debate is taking place as to the possibility to revoke the renunciation of succession, the author of this article proposes to establish a rule allowing a successor, who has renounced, to retain the faculty of accepting succession if it has not been accepted by any other person or if the other heirs, who have accepted, do not object to such a revokation. In such a case the heir would take the succession in its actual condition at the time of revokation and without prejudice to the rights which third parties may have acquired to property of the succession.
Author comes to a conclusion that the two concepts used in the text of the Civil Code of the Republic of Lithuania – “renunciation of succession” and “non-acceptance of succession” – are not identical concepts and do not entail the same legal effects. If a successor dies before exercising his option, his own heirs acquire the right to deliberate and exercise the option instead of the successor who died. In the case of renunciation, the trasmition of the right to inherit is not passed onto the heirs of the successor who has renounced and who himself died.
The article takes a comparative approach, presenting some of the solutions accepted in the legal systems of France, Quebec, Germany and Russia.
These two legal transactions are analysed in regard to the form of expression of will and the legal consequences they produce. As long as acceptance of succession may be express or tacit (deduced from some factual circumstances clearly attesting the will of an heir to inherit), renunciation of succession has to be express or result from the law which attaches legal consequences to the non-acceptance of succession, i.e. to silence on the part of an heir.
The article also deals with the question relating to the time limits for excercing the successoral option. Under Lithuanian law, a successor has three months from the opening of the succession to deliberate and exercise his option. Author comes to a conclusion that this period could not be regarded as an extinctive time limit which extinguishes the subjective right of an heir to inherit.
The question of revokation of unilateral legal transactions is analysed in the case of a renunciation of succession. While debate is taking place as to the possibility to revoke the renunciation of succession, the author of this article proposes to establish a rule allowing a successor, who has renounced, to retain the faculty of accepting succession if it has not been accepted by any other person or if the other heirs, who have accepted, do not object to such a revokation. In such a case the heir would take the succession in its actual condition at the time of revokation and without prejudice to the rights which third parties may have acquired to property of the succession.
Author comes to a conclusion that the two concepts used in the text of the Civil Code of the Republic of Lithuania – “renunciation of succession” and “non-acceptance of succession” – are not identical concepts and do not entail the same legal effects. If a successor dies before exercising his option, his own heirs acquire the right to deliberate and exercise the option instead of the successor who died. In the case of renunciation, the trasmition of the right to inherit is not passed onto the heirs of the successor who has renounced and who himself died.
The article takes a comparative approach, presenting some of the solutions accepted in the legal systems of France, Quebec, Germany and Russia.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
